Beadle v La Bianca
[2012] WASC 415
•8 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BEADLE -v- LA BIANCA [2012] WASC 415
CORAM: PRITCHARD J
HEARD: 24 JULY 2012
DELIVERED : 8 NOVEMBER 2012
FILE NO/S: SJA 1004 of 2012
BETWEEN: GAVIN MICHAEL BEADLE
Appellant
AND
NUNZIO DI GEGORIO LA BIANCA
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE LAWRENCE
File No :PE 47381 of 2009
Catchwords:
Statutory interpretation - Principles of construction - Role of context
Liquor Control Act 1988 (WA), s 119(7) - 'Place of resort' - Proper construction
Legislation:
Liquor Control Act 1988 (WA)
Liquor Control Regulations 1989 (WA)
Sale of Liquor Act 1962 (NZ)
Result:
Appeal allowed
Matter remitted to the Magistrates Court
Category: B
Representation:
Counsel:
Appellant: Mr S M Nunn
Respondent: Mr M J McPhee
Solicitors:
Appellant: State Solicitor for Western Australia
Respondent: M J McPhee
Case(s) referred to in judgment(s):
AB v Western Australia (2011) 244 CLR 390
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Beckwith v R (1976) 135 CLR 569
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Commonwealth v Baume (1905) 2 CLR 405
Deming No. 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 155 CLR 129
Ex parte Purcell (1907) 7 SR (NSW) 432
Ex Parte Zietsch; Re Craig (1944) 44 SR (NSW) 360
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (No. 2) [2008] WASC 166
Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Police v Davis [1981] 1DCRNZ 249
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Tuck v Priester (1887) 19 QBD 629
Waugh v Kippen (1986) 160 CLR 156
PRITCHARD J:
Introduction
The respondent was prosecuted in the Magistrates Court for an offence under s 119(7) of the Liquor Control Act 1988 (WA) (the LC Act), namely that between 4 and 5 July 2009 he was a person in control of an unlicensed premises, namely The Revolutions Lounge, situated at 361 Newcastle Street Northbridge (the premises) and allowed the premises to be kept or used as a place of resort for the consumption of liquor (the charge).
Section 119(7) of the LC Act provides:
Where a person is the occupier or has or takes part in the care, management, or control of any unlicensed premises (other than a place or premises to which subsection (2) or (3) applies) and allows those premises to be kept or used as a place of resort for the consumption of liquor, the person commits an offence.
Following a trial, the learned magistrate dismissed the charge. In his reasons for decision, the learned magistrate held that the prosecution had failed to prove beyond reasonable doubt one element of the offence under s 119(7) of the LC Act, namely that the premises were kept or used 'as a place of resort' for the consumption of liquor.
The appellant now appeals the decision of the learned magistrate, pursuant to a grant of leave to appeal on 16 February 2012. The appeal grounds concern the proper construction of the phrase 'place of resort' in s 119(7) of the LC Act.
For the reasons set out below, I have concluded that the appeal should be upheld. These reasons deal with the following matters:
1.Factual background.
2.The reasons for decision of the learned magistrate and the ground of appeal.
3.Whether the learned magistrate erred in his approach to the construction of s 119(7) of the LC Act.
4.The proper construction of s 119(7) of the LC Act.
Factual background
It is convenient to provide an overview of the factual background and the learned magistrate's findings so as to give some context to the issue of construction which was the subject of the appeal. The following facts are drawn from the reasons for decision given by the learned magistrate.
During the evening of 4 July 2009, two police officers from the Licence Enforcement Division of the Western Australian Police Service went to the premises. The police officers were wearing plain clothes. At the time, the premises were not licensed to sell or supply alcohol or to allow alcohol to be consumed on the premises. There had previously been a liquor licence for the premises when it was known as The Bog Nite Club, but that licence had been cancelled some months before. The respondent was a director of the company which was the lessee of the premises, and he had previously been an approved manager when the premises were the subject of a liquor licence.
There was a sign outside the premises alerting prospective patrons to wood‑fired pizza and entertainment. The police officers entered the premises, approached the bar and asked a barman if they could buy a beer. They were informed that the venue was 'BYO' but that non‑alcoholic drinks were available.
Later that evening the officers returned to the premises with some alcohol. They saw a barman removing bottles from the fridge and pouring drinks over ice for patrons. The officers' evidence was that they believed that the bottles contained alcohol brought by patrons to the premises. The officers asked if they could leave their alcohol in the fridge, but were told they could take it with them to a table. They also saw people consuming alcohol from wine, spirit and champagne bottles on the tables. The officers saw the respondent mixing with the patrons in the premises. There was evidence that a speech was given by one of the people present.
Prior to the night in question, the respondent had participated in a recorded interview with a journalist which was put into evidence at the trial. He said that he intended that the premises were to be used as an alcohol‑free venue, and would be available for hire for private events.
The respondent gave evidence at the trial. His evidence was that on the night of the alleged offence, the premises were being used for a one‑off private party, at which those attending (apart from the two police officers, whom he recognised) were family and friends. The respondent's evidence was that he provided food, but not drinks, at the party, and volunteers staffed the bar. He conceded that he allowed those attending to bring their own alcoholic drinks and to consume them on the premises. He also conceded that he was in control of the premises on the night in question.
The learned magistrate held that the prosecution had established beyond reasonable doubt that the respondent was in control of the premises, and that he allowed the premises to be kept or used for the consumption of alcohol. Counsel for the respondent accepted that the learned magistrate held that each element of the offence had been proved beyond reasonable doubt by the prosecution, other than that the premises were a 'place of resort'.
I turn to the learned magistrate's reasons in relation to his construction of the phrase 'place of resort'.
The reasons for decision of the learned magistrate and the ground of appeal
The learned magistrate delivered two decisions in which he considered the meaning of the phrase 'place of resort': one in respect of a 'no case' submission at the end of the prosecution case[1] (the earlier reasons) and one at the conclusion of the trial when he dismissed the charge[2] (the final reasons). In the final reasons, the learned magistrate made clear that those reasons were to be read in conjunction with the earlier reasons. Accordingly, in considering whether the learned magistrate erred in his construction of the phrase 'place of resort' in s 119(7) of the LC Act, it is necessary to read the earlier reasons (insofar as they deal with the construction of that phrase) as well as the final reasons.
[1] Beadle v Labianca, Magistrates Court, 20 June 2011.
[2] Beadle v Labianca, Magistrates Court, 12 December 2011.
Insofar as he dealt with the meaning of the phrase 'place of resort' in the earlier reasons, the learned magistrate held:[3]
The phrase 'place of resort' is an old‑fashioned word with an old‑fashioned meaning and not a new meaning. It is not a phrase which requires any 'updating' in its meaning. I note the reference to the meaning of the noun 'resort' from the Macquarie Dictionary … .
If one looks at the type of places encompassed by the various subsections in s 119 they are places that by their nature people will return to; any park or reserve (s 119(1)), any sports ground or stadium s 119(2)), any road (s 119(4(a)) within 400 metres of a public hall (s 119(4)(b)); any place or on any premises to which the public is permitted to have access (s 119(4)(c)).
…
I am therefore satisfied that the phrase 'place of resort' has an unambiguous meaning. In addition to the meanings given in the Oxford English Dictionary that meaning is also consistent with the meaning attributed to the phrase in the Macquarie Dictionary … . It denotes some repetition or returning to a particular location or that the premises will be available in an ongoing manner for that particular purpose. To ascribe a meaning that includes an isolated occasion gives the phrase no utility at all in the context of the offence under s 119(7).
It follows that I find there is no need to refer to the objects of the Liquor Control Act to resolve any issue of statutory interpretation. (emphasis added)
[3] Beadle v Labianca, Magistrates Court, 20 June 2011, 8 ‑ 9.
In the final decision, the learned magistrate relevantly held:[4]
I find that the prosecution must prove that there was frequency of the use of the premises at times when they were unlicensed. There is no other explanation for the inclusion of the phrase 'place of resort' in the subsection. It is the linkage between unlicensed premises and their ongoing availability for the consumption of alcohol that the subsection is aimed at and in this case there has only been one occasion relied on when the premises were unlicensed and kept or used as a place of resort for the consumption of alcohol. The prosecution has therefore not proved their case beyond reasonable doubt and the accused is acquitted.
[4] Beadle v Labianca, Magistrates Court, 12 December 2011, 6.
The appellant relied on a single ground of appeal, particularised in the following way:
The learned Magistrate erred in fact and law in acquitting the Respondent on the basis of an erroneous interpretation of section 119(7) of the Liquor Control Act 1988 (WA).
Particulars
The learned magistrate
(a)erred in law in concluding that section 119(7) required the prosecution to prove that there was frequency of the use of the premises in question as a place of resort for the consumption of liquor;
(b)ought to have found that a single instance of the use of a premises as a place of resort for the consumption of liquor was sufficient to establish that element of the offence under section 119(7);
(c)…
(d)ought to have found that each element of the offence against section 119(7) had been established beyond reasonable doubt by the prosecution, and accordingly convicted the Respondent.
Although the error by the learned magistrate was said to be one of 'fact and law' the focus of the appeal was on an alleged error of law by the learned magistrate in his construction of the phrase 'place of resort' in s 119(7) of the LC Act.
Whether the learned magistrate erred in his approach to the construction of s 119(7) of the LC Act
The tenor of the submissions advanced on behalf of the appellant was that the learned magistrate erred in his construction of s 119(7) because the ordinary and natural meaning of the words 'place of resort' encompass a place where a person or a group of persons can go for the purpose of consuming alcohol, without necessarily requiring any repetition or frequency of use, that the learned magistrate failed to take into account the objects of the LC Act, and that a construction of the words 'place of resort' which did not import a requirement for the frequent use of the unlicensed premises for the consumption of alcohol was consistent with the objects of the LC Act.
As is apparent from the extracts of the reasons set out above, the learned magistrate clearly took the view that the ordinary and natural meaning of the words in the phrase 'place of resort' was unambiguous, and therefore his Honour concluded that there was no need to take into account the objects of the LC Act.
The modern approach to statutory construction focuses on discerning the intention of the Parliament and thus requires that
context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and … uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.[5]
[5] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ); see also Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby & Hayne JJ); Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, 397 (Dixon CJ); AB v Western Australia (2011) 244 CLR 390, 398 [10], 402 [23] ‑ [24], 405 [36], 406 [38] (French CJ, Gummow, Hayne, Kiefer & Bell JJ).
The context within which a particular provision must be included necessarily includes the objects of the legislation in question. The legislative purpose has an additional significance if the provision in question can be construed in more than one way (in that a construction which would promote the purpose of the legislation is to be preferred)[6], but that does not mean that the legislative purpose only arises for consideration in the event of an ambiguity. The legislative purpose (together with all aspects of the legislative context) should be considered at the outset, in conjunction with the ordinary meaning of the words, to construe a provision in a statute.
[6] See s 18 of the Interpretation Act 1984 (WA).
In failing to take into account the objects of the LC Act, in my respectful view the learned magistrate erred in law.
However, in determining whether the appeal should be upheld[7] it is necessary to consider further the construction adopted by the learned magistrate.
[7] Cf s 14(2) Criminal Appeals Act 2004 (WA).
The proper construction of s 119(7) of the LC Act
(a) The ordinary and natural meaning of the words 'place of resort'
The word 'resort' is capable of a number of meanings. Having regard to the definitions set out in the Macquarie Dictionary and the Concise Oxford Dictionary, the word 'resort' can be used, broadly, in three senses. First, the word can be used in a way that is synonymous with the word 'recourse'. In this manner 'resort' describes a thing or a course of conduct to which a person has recourse (in the sense, for example, of resort to violence, or resort to war) or refers to an expedient to which one turns when all others have failed (in the sense of a last resort).
Secondly, the word 'resort' can be used to mean 'to go' especially in the sense of going frequently or customarily (for example, a place to which many people resort).
Thirdly, the word 'resort' can refer to a place to which the public may go (in the sense of a place frequented, especially by the public generally), often for a specified purpose (for example, a holiday resort). When used in this sense, the word 'resort' may sometimes be used to refer to a place where people go frequently or customarily.
It is in the latter sense that the word 'resort' is used in s 119(7). Having regard to the ordinary and natural meaning of the word 'resort', the phrase 'place of resort' in s 119(7) of the LC Act is clearly capable of meaning either a place to which people go, or a place to which people go customarily, or frequently or habitually.
(b) Contextual considerations – the terms of s 119
The next step in discerning the meaning of the words 'place of resort' is to note the immediate context in which those words are used, both within s 119(7) itself and within s 119 as a whole.
Turning first to s 119(7), it is of considerable significance, in my view, that the provision refers to premises which are allowed to be 'kept or used as a place of resort'. While the word 'kept' imports some sense of permanence in the purpose to which the premises may be put, the alternative term 'used' is capable of encompassing both a single use or multiple uses.
The ordinary and natural meaning of the word 'resort', together with the reference to the premises being 'kept or used' as a place of resort, mean that s 119(7) is, on its face, capable of application to premises which may be used as a place where people go for the consumption of alcohol on a single occasion, or on more than one occasion, or to premises which are more permanently kept for that purpose.
Some parallels and some contrasts between s 119(7) and other subsections within s 119 also support this conclusion. There are three matters of note.
First, s 119 as a whole is clearly directed to controlling where liquor may be consumed. So, for example, s 119(1) prohibits the consumption of liquor in any place or on any premises without the consent of the occupier or person in authority or control of that place, while s 119(2) and (3) are directed to the circumstances in which liquor may be consumed in sporting grounds and stadiums, and s 119(4) is directed to the consumption of liquor in other specified places. I note that 'premises' is very broadly defined in s 3 of the LC Act to include land, vehicles and parts of premises.
Similarly, s 119(7) is clearly directed to regulating where liquor may be consumed, insofar as it prohibits premises from being kept or used as a place of resort for the consumption of liquor. On the face of the provision, there is no limit on the kinds of premises which may be subject to the prohibition in s 119(7) (assuming that those premises otherwise are being kept or used as a place of resort for the consumption of liquor). That much is evident from s 119(8), which creates an exception from s 119(7) to ensure that that subsection does not apply to the consumption of liquor on premises on which a person resides, or the consumption of liquor which is supplied to a person by way of gift, or as a guest, of a person who resides on the premises. That such an exception was required confirms that the Parliament recognised that s 119(7) was capable of a very wide operation in respect of premises.
The second thing to note about s 119(7) and s 119 as a whole is that the Parliament has chosen to regulate the conduct of occupiers, or persons in control of, those places and premises (see s 119(7) and s 119(5)), as well as the conduct of persons on those premises. In the case of s 119(1), it is an offence to consume liquor in any place or premises without the consent of the occupier or person in control (s 119(1)). (The assumption appears to be that if the occupier or person in control has given consent to the consumption of liquor, he or she will first have ensured that the premises are licensed for the consumption of liquor, if it is necessary to do so, or otherwise will themselves potentially act in contravention of the LC Act.)
However, in this respect, there are some important contrasts between s 119(7) and other provisions within s 119. Although s 119(7) is directed to regulating the behaviour of occupiers of premises and persons in control of premises, s 119(9) extends the operation of s 119(7) to cover persons who act as if they were the occupier, or person in control, of premises (without also affecting the liability of other persons, such as the actual occupiers or persons in control of premises).
Further, s 119(11) provides that a person found on any unlicensed premises kept or used in contravention of s 119(7) - that is, as a place of resort for the consumption of liquor - commits an offence. In this respect, there is an important difference between s 119(1) and s 119(11) which is that, by virtue of s 119(11), merely being found on the unlicensed premises will constitute an offence, whereas the prohibited conduct in s 119(1) requires the person to consume liquor in a place or on premises without the consent of the occupier or person in control. (I note that s 119(12) creates a defence for a person who was present, but was present for a lawful purpose and who did not take part in any unlawful sale, supply or consumption of liquor.)
The existence of s 119(9) and s 119(11) provides an indication that the Parliament intended that its regulation of the consumption of liquor on unlicensed premises should extend very widely.
Thirdly, a further indication that Parliament intended that s 119(7) should have a very broad application can be seen in s 119(10) of the LC Act, which provides that premises may be 'deemed to be' kept or used as a place of resort for the consumption of liquor even though they are open only for the use of particular persons or classes of persons, and not to all persons who wish to use them.
Each of these considerations supports the conclusion that the Parliament contemplated that s 119(7) would have a broad operation. That is consistent with the prohibition in s 119(7) applying to persons who permit a premises to be used as a place of resort for the consumption of alcohol on a single occasion, or used on more than one occasion, or to be kept (in a more permanent sense) for that purpose.
(c) Contextual considerations – objects of the LC Act
I turn, next, to consider the legislative purpose behind the LC Act. For completeness, I note that the second reading speech in respect of the LC Act does not contain any specific reference to the object or purpose of s 119 or s 119(7) in particular, and does not contain any observation which assists in the interpretation of s 119(7).
The objectives of the LC Act as a whole can be discerned from its long title[8] and from s 5 of the LC Act.
[8] See Jericho Nominees Pty Ltd v Dileum Pty Ltd (1992) 6 WAR 380, 400 (Malcolm CJ, Pidgeon & Nicholson JJ agreeing at 401).
The long title of the LC Act indicates that the Act is one
to regulate the sale, supply and consumption of liquor, the use of premises on which liquor is sold, and the services and facilities provided in conjunction with or ancillary to the sale of liquor, to minimise harm or ill-health caused to people, or any group of people due to the use of liquor, to provide for orders that may prohibit persons from being employed at, or from entering, licensed premises, to repeal the Liquor Act 1970, and for related purposes.
The primary objects of the LC Act are restated in s 5(1) of the Act and are:
(a)to regulate the sale, supply and consumption of liquor; and
(b)to minimise harm or ill-health caused to people, or any group of people, due to the use of liquor; and
(c)to cater for the requirements of consumers for liquor and related services, with regard to the proper development of the liquor industry, the tourism industry and other hospitality industries in the State.
As the learned magistrate concluded, a construction of the phrase 'place of resort' which required an element of frequency or repetition would require proof that the consumption of liquor at an unlicensed premises had occurred on more than one occasion. I do not think it can be said that that construction of the words would not promote the objects of the LC Act,[9] at least insofar as minimising the harm or ill‑health which may be caused as a result of the consumption of liquor is concerned. However, that construction would not promote that object of the LC Act as efficaciously as a construction of that phrase which did not require frequency or repetition of use. That consideration provides support for the conclusion that the intention of the Parliament was that the phrase 'place of resort' in s 119(7) should encompass a premises which is used for the consumption of liquor on a single occasion (as well as on more than one occasion, or on a more permanent basis).
(d) Contextual considerations – s 119(7) creates an offence
[9] Compare s 18 of the Interpretation Act 1984.
A further aspect of the context for s 119(7) is the fact that the provision creates an offence. That fact may be relevant to the task of construction, according to established principles of statutory construction.[10] Historically, penal statutes tended to be construed strictly.[11] The more modern approach is that a penal statute should be construed in the same way as any other statute, but in the event of unresolved ambiguity, the fact that the statute imposes a penalty may be a reason to resolve the ambiguity by refusing to adopt that meaning which would extend the category of criminal offences.[12]
[10] See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [57] 49 (Hayne, Heydon, Crennan & Kiefel JJ).
[11] See Ex parte Purcell (1907) 7 SR (NSW) 432, citing with approval Tuck v Priester (1887) 19 QBD 629, 638 (Lord Esher MR); see also Ex Parte Zietsch; Re Craig (1944) 44 SR (NSW) 360, 365 (Rodgers J).
[12] See Beckwith v R (1976) 135 CLR 569, 576 (Gibbs J); see also Deming No. 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd (1983) 155 CLR 129, 145 (Mason, Deane & Dawson JJ); Waugh v Kippen (1986) 160 CLR 156, 164 (Gibbs CJ, Mason, Wilson & Dawson JJ); Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, [45] 210 ‑ 211 (Gleeson CJ, Gummow, Hayne & Heydon JJ) and [227] 260 (Kirby J).
When the LC Act is considered as a whole, however, one of its primary purposes is not penal, but beneficial. The offence provisions in the LC Act, and s 119(7) in particular, appear to be directed to the achievement of the Act's beneficial purpose of minimising the risk of ill-health and harm to people which may arise from the use of liquor. The strict approach to construction which may be open in the case of a penal statute is thus not appropriate in relation to s 119(7) of the LC Act.[13]
(e) Contextual considerations – other provisions in the LC Act
[13] Compare Waugh v Kippen (1986) 160 CLR 156, 164 ‑ 165 (Gibbs CJ, Mason, Wilson & Dawson JJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 109 ‑ 110 (McHugh J).
Counsel for the appellant submitted that some assistance in the construction of the term 'resort' in s 119(7) could be derived from considering how that word is used elsewhere in the LC Act. In support of this submission, counsel referred to s 64(3)(c), s 95(4)(k) and s 117(1)(b)(iii) of the LC Act. However, in each of these provisions, the word 'resort' is used in a different sense (that is, synonymously with 'to go' or 'gone') and consequently in my view no assistance can be derived from the use of the word 'resort' in those provisions.
(f) Construction of the phrase 'place of resort' in other statutes
Counsel for the respondent sought to derive some assistance from the manner in which the phrase 'place of resort' has been interpreted in other legislative contexts. Counsel referred to s 72(2) of the Corruption and Crime Commission Act 2003 (WA) which refers to the issue of a fortification notice by the Commissioner of Police in circumstances where, amongst others, premises are 'habitually used as a place of resort by members of a class of people a significant number of whom may reasonably be suspected to be involved in organised crime.' In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (No. 2), Blaxell J considered that the words used in s 72(2) of the Corruption and Crime Commission Act 2003 (WA) were simple and in common use, and their ordinary and natural meaning could readily be understood. Although his Honour accepted that s 72(2)(c) imported a requirement for frequent attendance at the premises,[14] that requirement appears to have derived from the use of the additional words 'habitually used' in s 72(2)(c). Other than to confirm that on one construction, the words 'place of resort' do not encompass an element of repeated use (which is to confirm no more than the ordinary and natural meaning of the words used) the construction given to the words 'place of resort' in s 72(2) of the Corruption and Crime Commission Act is of no assistance in the present context.
[14] Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (No. 2) [2008] WASC 166 [22] (Blaxell J).
In Switzerland Insurance Australia Ltd v Mowie Fisheries Pty Ltd[15] (to which the learned magistrate had been referred) consideration was given to the meaning of the words 'place of resort' in the definition of 'port' in s 4(1) of the Marine Act 1976 (Tas).[16] Other than to observe that the Court relied upon the ordinary meaning of the word 'resort' as 'a place frequented, esp by the public' the very different legislative context means that that decision is also of no assistance in determining the meaning of the phrase 'place of resort' in the LC Act.
[15] (1997) 144 ALR 234.
[16] That definition referred to 'any harbour, haven, roadstead, or place of resort for shipping, and any navigable river'.
Of more assistance, however, is the decision in Police v Davis[17] to which the learned magistrate referred. That decision concerned the meaning of the words 'place of resort' in s 264 of the Sale of Liquor Act 1962 (NZ), which appears to have been in very similar terms to s 119(7) of the LC Act. In that case, some garage premises had been converted into a bar, and persons were found to be consuming liquor on those premises. The defendant was in control of the premises and was charged that as a person having the care, management or control of the premises, he kept or used the premises as a place of resort for the consumption of liquor. The defence disputed that the evidence supported the conclusion that the premises were used as a place of resort for the consumption of liquor. It was submitted that the word 'resort' implied some habitual or frequent use, so that evidence of use of the premises on one occasion alone was not sufficient to prove the charge. In the District Court, Judge Pain held:[18]
The determination of this case necessarily calls for a consideration of the words 'place of resort' used in s 264. To my mind the use of the word 'resort' must be given some significance. The dictionary gives a variety of meanings for it. …
In my view, when the word is used in the context of a place of resort for a particular purpose (in this case the consumption of liquor) it is used in a sense that implies something that is not of a fleeting or transitory nature. The meaning commonly attributed to the word is that it implies a place frequented for a particular purpose. However, for a place to be frequented for a particular purpose it does not have to be regularly or habitually used for that purpose. A country racecourse would be a place of resort for horse racing on the occasion of a single meeting held at the venue and persons may resort to a farm property for a single open air music festival.
…The minimum requirements cannot be defined. It will involve an inquiry into all the circumstances. They must be sufficient to show that there has not been merely some isolated and casual consumption of liquor in the premises in a passing or transitory way but proof of persons resorting there for the purpose of consuming liquor.
Usually there will be evidence of the actual use of the premises observed by a police officer. If that evidence covers more than one occasion then that aspect of the charge may clearly be proved. However, proof of use of the premises on only one occasion may be sufficient to justify a conviction under the section.
[17] [1981] 1DCRNZ 249.
[18] Police v Davis [1981] 1DCRNZ 249, 252 ‑ 253 (Paine DCJ).
The learned magistrate quite correctly observed that the decision in Police v Davis was not binding on him. Nevertheless, in my view, the construction given to the words 'place of resort' in an almost identical statutory provision in the context of legislation which appears to have had a very similar legislative object to the LC Act is a useful confirmation of the construction which can similarly be discerned from the ordinary meaning of those words, and the context in which they are used, in s 119(7) of the LC Act.
(g) Other submissions advanced by the respondent
Counsel for the respondent sought to support his submission that the meaning of the word 'resort' imports an element of frequency or repetition of use by reference to the derivation of the word 'resort' from the French word 'sortir' (meaning to issue, or go out). Irrespective of the derivation of the word, the question of its ordinary meaning depends upon its modern usage, which, as I have observed, does not necessarily require frequency or repetition of use.
Counsel for the respondent also submitted that the mischief to which s 119(7) was directed was to the prohibition of a place akin to a 'speakeasy'. By that, I understood counsel to be referring to those places where liquor was sold illegally and clandestinely during the period of prohibition in the United States.[19] However, I am unable to accept that submission because it did not, of itself, assist in determining whether frequency or repetition of use are required to be proved in order to establish that premises are kept or used as a place of resort for the consumption of liquor.
[19] ts 28.
A more attractive argument advanced by counsel for the respondent was that if the words 'place of resort' do not import an element of frequency or repetition of use then those words would in effect be superfluous within the subsection.[20] It is a well‑established principle of construction that a court should strive to give meaning to every word in a provision.[21] However, as I have already explained, the work done by the phrase 'place of resort' is to import both the concept of a place where people go (for the purpose of the consumption of liquor) and also the concept that the place is one where people generally (that is, the public) can go. It is for the latter reason that s 119(10) also provides that premises will be of that kind if they are open only for the use of particular persons or classes of persons, and not to all persons who wish to use them.
(h) Conclusion in relation to the meaning of 'place of resort'
[20] Respondent's Written Submissions, [26].
[21] See Commonwealth v Baume (1905) 2 CLR 405, 414 ‑ 415 (Griffith CJ); Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby & Hayne JJ).
Having regard to the ordinary meaning of the word 'resort', to the context in which the words 'place of resort' are found within s 119(7) and within the LC Act as a whole, and taking into account the objects of the LC Act, particularly the object of minimising the harm or ill‑health which may be caused by the consumption of liquor, the words 'place of resort' in my view refer to a place to which people go for the purpose specified in s 119(7), namely for the consumption of liquor. Other words in s 119(7) confirm that the premises may be kept (in a permanent sense) or used (on one or more occasions) as a place of resort for that purpose. Accordingly, evidence adduced to prove an offence under the subsection may cover more than one occasion, but evidence of the use of the premises on only one occasion may also be sufficient to prove the offence. That evidence may encompass matters such as the nature and location of the premises, whether members of the public or particular persons or classes of persons were present, and the circumstances in which those persons came to be at the premises.
Some of the submissions on the hearing of the appeal touched on the question whether this broad construction of s 119(7) could result in the commission of an offence in circumstances in which there may be room for debate as to whether the Parliament would have intended that consequence. It is not possible to envisage all of the circumstances in which a provision such as s 119(7) might be capable of application, and such circumstances were not the subject of fully considered submissions by counsel at the hearing. In any event, the focus for the Court must necessarily be on the factual situation before it rather than on whether or not it is desirable that the legislation apply in other situations.[22] It suffices to say, however, that the LC Act, together with the Liquor Control Regulations 1989 (WA) contain a number of provisions which appear intended to ensure that certain conduct which may otherwise fall within the scope of conduct prohibited under the LC Act is either exempted from the offence provisions in the LC Act,[23] or may be the subject of a licence, in which case no offence would be committed.[24]
[22] Cf Australian Education Union v Department of Education and Children's Services (2012) 86 ALJR 217, 225 [28] (French CJ, Hayne, Kiefel & Bell JJ).
[23] See, for example, reg 8B and reg 8C of the Liquor Control Regulations 1989.
[24] See, for example, the range of licences which may be granted under div 2 of Part 3 of the LC Act, including occasional licences pursuant to s 59 of the LC Act.
The disposition of the appeal
For these reasons, in my respectful view, the learned magistrate erred in law in his construction of the words 'place of resort' in s 119(7) of the LC Act.
Not surprisingly, the learned magistrate did not make any finding as to whether (but for his construction of the phrase 'place of resort') he would have been satisfied that the charge was proved beyond reasonable doubt.
Both counsel submitted that if the Court concluded that the subsection could be contravened if the premises were kept or used as a place of resort for the consumption of liquor on a single occasion, then given the findings of the learned magistrate on the other elements of the offence in s 119(7), a conviction should follow.[25] On the other hand, some of the submissions by the respondent's counsel appeared to be directed to whether the prosecution had proved that the premises were in fact kept or used as a place of resort for the consumption of liquor even if no frequency or repetition of use was required to be proved, having regard to the evidence from the respondent that the premises were being used for a private party.
[25] Respondent's Written Submissions, [76] ‑ [78] and ts 39.
In these circumstances, the preferable course appears to be to remit the matter to the learned magistrate for further consideration in accordance with these reasons, and if the learned magistrate considers the charge proven beyond reasonable doubt he will then be able to enter a conviction and to sentence the respondent.
The nature of the orders which should be made is as follows:
(a)the appeal is allowed;
(b)the decision to acquit the respondent of the charge is set aside;
(c)the matter is remitted to the learned magistrate for determination in accordance with these reasons.
I will hear the parties in relation to the precise form of these orders, and as to costs.
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